Washington v. Resort Services ( 2016 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Arthur Washington, Appellant,
v.
Resort Services, Inc., and John Doe, Respondents.
Appellate Case No. 2014-001409
Appeal From Beaufort County
J. Ernest Kinard, Jr., Circuit Court Judge
Unpublished Opinion No. 2016-UP-028
Submitted December 1, 2015 – Filed January 20, 2016
AFFIRMED
Charles E. Houston, Jr., of The Houston Law Firm, LLC,
of Houston, TX, and William Franklin Barnes, III, of
Peters Murdaugh Parker Eltzroth & Detrick, PA, of
Hampton, for Appellant.
Helen Faith Hiser, of McAngus Goudelock & Courie,
LLC, of Mount Pleasant, for Respondent.
PER CURIAM: Arthur Washington appeals the trial court's order (1) granting
Doe's motion to dismiss and (2) denying Washington's motion for default
judgment. We affirm1 pursuant to Rule 220(b), SCACR, and the following
authorities:
1. As to whether the trial court erred in granting Doe's motion to dismiss: S.C.
Code Ann. § 15-3-535 (2005) (stating personal injury actions must be commenced
within three years "after the person knew or by the exercise of reasonable diligence
should have known that he had a cause of action"); Jackson v. Doe, 342 S.C. 552,
558, 537 S.E.2d 567, 570 (Ct. App. 2000) ("The language of Rule 15(c) clearly
speaks to a change in party, not the addition of a defendant to an already existing
defendant. In our view, the addition of a party is not the same as a substitution or
change of party."); id. at 555, 537 S.E.2d at 569 ("[T]here is no provision
specifically allowing John Doe and a later added or substituted party to be
considered the same entity for purposes of tolling the statute of limitations.");
Nationwide Mut. Ins. Co. v. Erwood, 373 S.C. 88, 91, 644 S.E.2d 62, 63 (2007)
("Section 38-77-150 mandates UM coverage in all automobile insurance policies.
We find that the mandatory nature of this coverage distinguishes it from []
voluntary UIM coverage . . . ."); Fireman's Ins. Co. of Newark, New Jersey v. State
Farm Mut. Auto. Ins. Co., 295 S.C. 538, 543, 370 S.E.2d 85, 88 (1988) ("[T]he law
in South Carolina is clear that underinsured coverage and uninsured coverage are
mutually exclusive."); State Farm Mut. Auto. Ins. Co. v. James, 337 S.C. 86, 95,
522 S.E.2d 345, 349-50 (Ct. App. 1999) (holding an insured may not recover both
uninsured and underinsured motorist benefits).
2. As to whether the trial court erred in denying Washington's motion for default
judgment: Rule 55(a), SCRCP ("When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by
these rules and that fact is made to appear by affidavit or otherwise, the clerk shall
enter his default upon the calendar . . . ."); S.C. Code Ann. § 38-77-180 (2015)
("[A]n action may be instituted against the unknown defendant as 'John Doe' and
service of process may be made by delivery of a copy of the summons and
complaint or other pleadings to the clerk of the court in which the action is
brought."); S.C. Code Ann. § 38-77-150(B) (2015) ("No action may be brought
under the uninsured motorist provision unless copies of the pleadings in the action
establishing liability are served in the manner provided by law upon the insurer
writing the uninsured motorist provision. The insurer has the right to appear and
defend in the name of the uninsured motorist in any action which may affect its
liability and has thirty days after service of process on it in which to appear."); S.C.
Code Ann. § 38-5-70 (2015) ("Every insurer shall . . . appoint in writing the
1
We decide this case without oral argument pursuant to Rule 215, SCACR.
director . . . to be its true and lawful attorney upon whom all legal process in any
action or proceeding against it must be served . . . ."); Rule 12(a), SCRCP ("A
defendant shall serve his answer within 30 days after the service of the complaint
upon him . . . .").
AFFIRMED.
SHORT, GEATHERS, and MCDONALD, JJ., concur.